Hughes v. Gengler, No. 22122.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBARNES and DUNIWAY, Circuit , and McNICHOLS
Citation404 F.2d 229
Decision Date24 February 1969
Docket NumberNo. 22122.
PartiesRiley Leon HUGHES, Appellant, v. J. Herman GENGLER, Appellee.

404 F.2d 229 (1968)

Riley Leon HUGHES, Appellant,
v.
J. Herman GENGLER, Appellee.

No. 22122.

United States Court of Appeals Ninth Circuit.

October 2, 1968.

Rehearing Denied October 30, 1968.

Certiorari Denied February 24, 1969.


Riley Leon Hughes, Marysville, Cal., for appellant.

John P. Hyland, U. S. Atty., Wm. B. Shubb, Asst. U. S. Atty., Sacramento, Cal., for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and McNICHOLS,* District Judge.

Certiorari Denied February 24, 1969. See 89 S.Ct. 870.

BARNES, Circuit Judge.

Appellant by this appeal seeks three cents damages, and his costs. We think the time of postal employees and the courts could be better spent than in determining the dispute herein delineated. We might well affirm the judgment below on the basis of the maxim "de minimis non curat lex," but appellant's earnestness and sincerity entitle him to a better explanation of why he cannot recover. The law should not tolerate even a small injustice, nor the appearance of it.

Appellant was the addressee of a Special Delivery Air Mail Letter, deposited in rural mail box #734 — Route 2, near

404 F.2d 230
Escondido, San Diego County, California, and picked up by a rural mail carrier for transportation to and delivery in Marysville, Yuba County, California. Appellant complains that upon its arrival, the letter was withheld from "delivery" for an alleged postage deficiency of three cents

The letter contained on its face (1) seven 5 cent stamps; (2) the return rural route box number of the sender; (3) a handprinted notation (apparently made by sender) "Air Mail — Special Del.", and it was stamped "Air Mail — Special Delivery" once on the face, and four times on the reverse, apparently by the post office.

The special delivery charge was 30 cents. The air mail charge was then 8 cents. The total postage was therefore deficient by three cents.

The letter was addressed:

"Mr. R. Leon Hughes P. O. Box 651 Marysville, California"

The letter apparently arrived at Marysville on May 30, 1966, for it bears on its back the usual post office circular stamp, and within the circle:

Marysville May 30 6 A.M 1966 Calif

The letter being addressed to a post office box, and being special delivery, the postmaster was authorized to deliver "to the post office box," or "hold for delivery through the general delivery window, unless the addressee has given written notice that such mail be delivered to his residence or place of business." (Postal Manual 166.4). Appellant states in his brief (p. 14) that no such notice had ever been given by him to the Marysville Postmaster.

The letter being without sufficient postage, the post office at Marysville left a notice in appellant's P. O. Box 651 — on "P.O.D. form 3907, Notice to Call at Window X Mail with Postage Due."

Appellant had found it inconvenient to call for his mail on May 30, 1966, a holiday. He explains this in his "Answer to Motion for More Definite Statement," filed in the District Court:

"Most of my mail was political campaign literature prepared by volunteer clerks. There was nothing in the P.O.D. form 3907 to indicate mail of importance was being held. It was two days before I became sufficiently involved to take time off from work to call for the mail." (C.T. 23)

Appellant finally called for his mail during the daytime on June 2nd or 3rd. He was shown the letter described above, saw the seven 5 cents stamps on it, and we quote from appellant's brief what occurred:

Appellant said:

"`There appears sufficient stamps on the letter to me.\'
"The clerk replied, `It is marked, Air Mail Special Delivery and there is three cents due on it.\'
"`I certainly am not getting special delivery service,\' I protested.
"`If you want this letter, you will have to give me three cents\' was his immediate demand.
"`I gave him three cents under protest. He placed an ordinary three cents stamp on the envelope and canceled it, being careful not to let the date of cancellation touch the envelope." (C.T. 31)

Appellant, being indignant, thereupon filed suit against the Marysville Postmaster in the Small Claims Court of the Marysville Judicial District, County of Yuba, State of California, for $127.02. (C.T. 4) In an apparent attempt to discourage the appellant, his case was removed to the United States

404 F.2d 231
District Court, Northern District of California, Northern Division, sitting in Sacramento. (28 U.S.C. § 1442(a) (1)) Without such removal, which gave the District Court jurisdiction, the action would have remained in the State Courts. Teal v. Felton, 12 How. 284, 289, 53 U.S. 284, 289, 13 L.Ed. 990 (1851). No jurisdiction existed under the Federal Tort Claims Act, 28 U.S.C. § 2680(b). Jurisdiction here rests on 28 U.S.C. § 1291

In the District Court,...

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1 practice notes
  • Donovan v. Blue Ridge Pressure Castings, Inc., Civ. No. 81-1260.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 1, 1981
    ...of such validly promulgated federal regulations. See, Glapion v. MS Journalist, 487 F.2d 1252, 1255 (5th Cir. 1973); Hughes v. Gengler, 404 F.2d 229 (9th Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 870, 21 L.Ed.2d 778 (1969). B. Probable Cause The Act authorizes two types of inspectio......
1 cases
  • Donovan v. Blue Ridge Pressure Castings, Inc., Civ. No. 81-1260.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 1, 1981
    ...of such validly promulgated federal regulations. See, Glapion v. MS Journalist, 487 F.2d 1252, 1255 (5th Cir. 1973); Hughes v. Gengler, 404 F.2d 229 (9th Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 870, 21 L.Ed.2d 778 (1969). B. Probable Cause The Act authorizes two types of inspectio......

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